Citation Nr: 1022285
Decision Date: 06/16/10 Archive Date: 06/24/10
DOCKET NO. 06-21 073 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an initial compensable rating for cyst on
right upper head.
2. Entitlement to an initial rating in excess of 30 percent
for right cubital tunnel syndrome.
3. Entitlement to an initial rating in excess of 10 percent
for residuals from heat exhaustion with intolerance and
syncope.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D.S. Lee, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1982 to June
1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, in February 2005, which granted service
connection for chronic heat exhaustion with heat intolerance
and repeated syncope and assigned an initial 10 percent
rating, and, in September 2005, which granted service
connection for right cubital tunnel syndrome and assigned an
initial 10 percent rating and service connection for a cyst
on the head and assigned an initial noncompensable rating.
As the appeal involves a request for higher initial ratings
following the grant of service connection, the Board has
characterized the matters on appeal in light of the
distinction noted in Fenderson v. West, 12 Vet. App. 119, 126
(1999) (distinguishing initial rating claims from claims for
increased ratings for disabilities already service-
connected). In this regard, the Board notes that the initial
ratings assigned for the Veteran's chronic heat exhaustion
and the cyst on the head have continued to date. The initial
rating assigned for the Veteran's right cubital tunnel
syndrome, however, was increased to 30 percent in a November
2006 rating decision. Because the Veteran is presumed to be
seeking the maximum available benefit for a disability, the
claim for an initial rating in excess a 30 percent for right
cubital tunnel syndrome, remains a viable issue on appeal.
AB v. Brown, 6 Vet. App. 35, 38 (1993).
The Veteran testified at a Travel Board hearing which was
held in February 2010, at the RO, and before the undersigned
Acting Veterans Law Judge. At the Veteran's request, the
record in this appeal was held open for an additional 30 days
from the date of the hearing. No additional documentation
was submitted by the Veteran during that period.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board's review of the record reveals that further VA
action on the claims on appeal is warranted.
At his February 2010 Travel Board hearing, the Veteran
reported that he received medical treatment in January 2010
at the VA Medical Center (VAMC) in Montgomery, Alabama. He
testified that he also received treatment at the VAMC in
Birmingham, Alabama. He also reported that in 2009 he
underwent nerve conduction studies for his right cubital
tunnel disorder at the VAMC in Tuskegee, Alabama. A review
of the claims file reveals that only treatment records dated
from February 23, 2005 through November 2, 2006 and from
January 23, 2007 through June 29, 2007 have been obtained
from the Montgomery and the Tuskegee VAMCs. Only treatment
records dated from May 10, 2005 through December 20, 2005
have been obtained from the Birmingham VAMC. The Veteran
also testified that he underwent vocational rehabilitation
training. The Board notes that the Veteran's vocational
rehabilitation training folder has not been incorporated into
the claims file. The Board emphasizes that records generated
by VA facilities that may have an impact on the adjudication
of a claim are considered constructively in the possession of
VA adjudicators during the consideration of a claim,
regardless of whether those records are physically on file.
See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must
obtain all outstanding pertinent VA records, following the
current procedures prescribed in 38 C.F.R. § 3.159 (2009) as
regards requests for records from Federal facilities.
During his hearing, the Veteran reported for the first time
that he had applied for Social Security Administration (SSA)
disability benefits in 2005 or 2006. No SSA records have
been sought. While SSA records are not controlling for VA
determinations, they may be "pertinent" to VA claims. See
Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v.
Derwinski, 1 Vet. App. 412 (1991). When VA is put on notice
of the existence of SSA records, as here, it must seek to
obtain those records before proceeding with the appeal.
Thus, the Board finds that VA should obtain and associate
with the claims file copies of any SSA disability
determination and all medical records underlying any such
determination, following the current procedures prescribed in
38 C.F.R. § 3.159(c) with respect to requesting records from
Federal facilities.
The Veteran most recently underwent VA examinations for his
residuals from heat exhaustion and his cubital tunnel
syndrome in June 2008. His most recent VA examination for
his cyst was performed at a February 2005 VA general medical
examination. The Veteran testified at his hearing, however,
that his symptoms have increased in severity.
A veteran is entitled to a new VA examination where there is
evidence that the condition has worsened since the last
examination. Snuffer v. Gober, 10 Vet. App. 400 (1997);
Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, a
veteran is competent to provide an opinion that his
disability has worsened. Proscelle v. Derwinski, 2 Vet. App.
629 (1992).
Once all records not previously obtained have been
incorporated into the claims file, the Veteran should be
scheduled for new VA examinations for the purpose of
determining the current nature and severity of the Veteran's
service-connected cyst, right cubital tunnel syndrome, and
residuals from heat exhaustion with intolerance and syncope.
Such examinations are necessary in view of the Veteran's
testimony that his symptoms have worsened since his last
examinations in 2005 and 2008.
To ensure that all due process requirements are met, VA
should ensure that the Veteran is properly notified of the
requirements of the holding in Dingess v. Nicholson, 19 Vet.
App. 473 (2006), such notice should include an explanation of
how disability ratings and effective dates are established.
Accordingly, the case is REMANDED for the following action:
1. Send a letter to the Veteran and his
representative providing notice that
meets the requirements of the holding in
Dingess, cited to above, with regard to
establishing disability ratings and
effective dates.
2. Obtain all outstanding records of
evaluation and/or treatment of the
Veteran from the Montgomery and Tuskegee
VAMCs, prior to February 23, 2005,
between November 2, 2006 and January 23,
2007, and since June 29, 2007; and from
the Birmingham VAMC, prior to May 10,
2005 and since December 20, 2005. All
records and/or responses received should
be associated with the claims file.
3. Obtain a copy of the Veteran's
vocational rehabilitation folder. All
records and/or responses received should
be associated with the claims file.
4. Request from SSA copies of any
decision(s) and all medical records
underlying any such decision(s) submitted
or obtained in support of any claim for
disability/supplemental income benefits
from SSA. If records are unavailable,
SSA should so indicate. If unsuccessful,
the Veteran and his representative should
be accorded the opportunity to furnish
such records directly to VA. All
records/responses received should be
associated with the claims file.
5. Assist the Veteran in obtaining any
additional evidence identified following
the current procedures set forth in 38
C.F.R. § 3.159. All records/responses
received should be associated with the
claims file. If any records sought are
not obtained, notify the Veteran and his
representative of the records that were
not obtained, explain the efforts taken
to obtain them, and describe further
action to be taken.
6. After all available records and/or
responses from each contacted entity have
been associated with the claims file,
schedule the Veteran for an appropriate
VA examination to evaluate the current
nature and severity of the Veteran's
service-connected cyst disorder.
The entire claims file, to include a
complete copy of the REMAND, must be made
available to the examiner designated to
examine the Veteran, and the examination
report should include discussion of the
Veteran's documented medical history and
assertions. All tests and studies deemed
necessary should be accomplished (with
all findings made available to the
examiner prior to the completion of his
or her report), and all clinical findings
should be reported in detail.
In discussing the relevant clinical
findings, the examiner should
specifically note: any visible or
palpable tissue loss; gross distortion or
asymmetry of the features (i.e., nose,
chin, forehead, eyes including eyelids,
ears, cheeks, or lips); the presence of
any scars; if present, whether any scars
or lesions are deep, nonlinear, unstable,
or painful, and, the length of each scar
or lesion and the total area of the body
and exposed area affected.
The examiner should set forth all
examination findings, along with the
rationale for any conclusions reached, in
a printed report.
7. After all available records and/or
responses from each contacted entity have
been associated with the claims file,
schedule the Veteran for an appropriate
VA examination to evaluate the current
nature and severity of the Veteran's
service-connected right cubital tunnel
syndrome.
The entire claims file, to include a
complete copy of the REMAND, must be made
available to the examiner designated to
examine the Veteran, and the examination
report should include discussion of the
Veteran's documented medical history and
assertions. All tests and studies (to
include x-rays, EMG, or NCS deemed
necessary) should be accomplished (with
all findings made available to the
examiner prior to the completion of his
or her report), and all clinical findings
should be reported in detail.
In discussing the relevant clinical
findings, the examiner should
specifically note any findings of
paralysis of any nerve, particularly the
median nerve. The examiner should
indicate whether the Veteran's symptoms
approximate complete or incomplete
paralysis of any nerve and, if
incomplete, whether it is mild, moderate
or severe.
The examiner should set forth all
examination findings, along with the
rationale for any conclusions reached, in
a printed report.
8. After all available records and/or
responses from each contacted entity have
been associated with the claims file,
schedule the Veteran for an appropriate
VA examination to evaluate the current
nature and severity of the Veteran's
service-connected residuals from heat
exhaustion with intolerance and syncope.
The entire claims file, to include a
complete copy of the REMAND, must be made
available to the examiner designated to
examine the Veteran, and the examination
report should include discussion of the
Veteran's documented medical history and
assertions. All tests and studies deemed
necessary should be accomplished (with
all findings made available to the
examiner prior to the completion of his
or her report), and all clinical findings
should be reported in detail.
In discussing the relevant clinical
findings, the examiner should
specifically note: any findings of
dizziness, staggering, or syncope,
photophobia, nausea, vomiting, and the
reported frequency of such symptoms;
vertigo; impairment of gait, double
vision, and any other functional and
occupational limitations.
The examiner should set forth all
examination findings, along with the
rationale for any conclusions reached, in
a printed report.
9. After completing the requested
actions, and any additional notification
and/or development deemed warranted,
readjudicate the Veteran's claims, to
include on an extraschedular basis under
38 C.F.R. § 3.321(b), in light of all
pertinent evidence and legal authority.
The VA should document its consideration
of whether "staged" ratings, pursuant to
Fenderson, cited to above, are warranted.
When rating the Veteran's service-
connected cyst, consider all applicable
diagnostic criteria under 38 C.F.R.
§ 4.118, including Diagnostic Codes 7800,
7801, 7802, 7804, 7805, and 7806. When
rating the Veteran's service-connected
residuals from heat exhaustion with
intolerance and syncope, consider all
applicable diagnostic criteria under
38 C.F.R. §§ 4.79, 4.87, 4.119, and
4.124a. If any benefit sought on appeal
remains denied, furnish to the Veteran
and his representative an appropriate
supplemental statement of the case that
includes clear reasons and bases for all
determinations, and afford them the
appropriate time period for response
before the claims file is returned to the
Board for further appellate
consideration.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
M.R. VAVRINA
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).